The spread of coronavirus (COVID-19) is generating concerns in the workplace, and employers have questions—understandably so. As of March 19, the CDC had reported 7,038 cases of COVID-19 in 53 states and jurisdictions nationwide, along with 97 deaths.
Employers are navigating issues including confidentiality and privacy concerns, health-related inquiries, leave-related issues, wage and hour issues, travel restrictions, as well as guidance and recommendations from the Centers for Disease Control and Prevention (CDC).
From the CDC In an effort to contain COVID-19 and address the risks associated with the spread of the virus, the CDC published an Interim Guidance for Business and Employers. Through its Interim Guidance, the CDC provides employers with the following information and tools to address, plan, prepare and respond to COVID-19:
The CDC has encouraged businesses to have a flexible plan in place in the event of an outbreak and to share that plan with employees. This is important as employers will play a pivotal role in helping to contain the spread of COVID-19. It will be critically important for businesses to protect the workplace while ensuring that business operations continue.
Employees have a right to confidentiality and privacy of their medical information in the workplace. This right is aligned with the ADA, HIPPA and other related federal and state laws. To that end, it is critically important that employers maintain the confidentiality of an employee’s COVID-19 diagnosis or related symptoms. The information should be retained in the employee’s private medical file (not in the employee’s personnel records).
If an employee is working remotely because of a quarantine and/or to self-monitor, employers should safeguard the employee’s privacy and confidentiality. Although an employee has the right to privacy and confidentiality of his or her medical information, other employees also have the right to know if there is a health risk in the workplace.
For this reason, employers should notify all employees of potential exposure in the workplace in the event an employee is diagnosed with COVID-19 or has related symptoms—without disclosing the identity of the individual with the diagnosis or related symptoms.
Employers who learn of an employee’s COVID-19 diagnosis are to contact the local health department to develop a plan for the workplace; and then communicate the plan to all employees. Employees should consult the CDC for information related to risk assessment and potential exposure.
According to the EEOC’s Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, an employer may ask an employee general questions related to the employee’s wellbeing.
Because COVID-19 presents a “direct threat” in the workplace, however, an employer may ask an employee if he or she is experiencing COVID-19 symptoms such as fever, tiredness, cough, and shortness of breath. Under the ADA, the term “direct threat” is defined as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
The determination of whether an employee poses a “direct threat” is based on a case-by-case assessment of whether the employee can perform the essential functions of the job. Factors to be considered to determine whether an individual would pose a direct threat include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
When an employer believes that an employee poses a “direct threat” in the workplace, the ADA allows an employer to request that the employee submit to a medical examination.
Moreover, OSHA imposes a duty on employers to provide employees with “employment and a place of employment, [that is] free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In asking an employee whether he or she has COVID-19 or related symptoms, an employer is taking steps to protect the workplace from the direct threat of COVID-19 and to provide a workplace free from hazards.
As noted above, COVID-19 appears to pose a “direct threat” in the workplace that potentially justifies inquiries related to its symptoms. Business decisions related to COVID-19 should be based on a legitimate concern related to exposure or possible exposure and that these concerns align with recommendations from the CDC.
Employers should ensure that they seek the advice of counsel when making health-related inquiries and resultant business decisions.
Lastly, employers should ensure that they retain up-to-date emergency contact information for all employees in the event of a workplace emergency.
Generally, businesses should treat an employee’s absence related to COVID-19 the same way they treat any other absence. In other words, if an employee is diagnosed with COVID-19 or is caring for a family member with COVID-19, then the company’s PTO, earned sick time and/or vacation policies will come into play.
Employers must also consider additional leave-related laws such as the FMLA and the ADA. Employers that provide their employees with FMLA leave, as required by federal law, may see an increase in requests for FMLA leave from employees who are diagnosed with COVID-19, or who otherwise need to care for a family member with COVID-19.
Employers should note that COVID-19 may be considered a serious health condition that may entitle an employee to a reasonable accommodation via ADA. Therefore, if an employee notifies the employer that he or she has COVID-19 or believes that he or she has the virus and asks to work from home, the employer should engage in interactive dialogue.
The CDC has requested that employers not require an employee to furnish a healthcare provider’s note if the employee is sick with acute respiratory illness to validate the illness and/or for the employee’s return to work. The CDC is concerned that healthcare providers and medical facilities may be unable to provide such documents in a timely manner.
Employers should assess each situation or employee circumstance with care and on a case-by-case basis.
Businesses and employees have been asking the question about how COVID-19 may impact the employee’s pay if the employee is out due to a mandatory company shut-down, or because the employee is sick or needs to care for a family member.
The answer as to the potential impact on an employee’s pay will vary depending on whether the employee is non-exempt (hourly) or exempt (salaried).
Non-Exempt Employees. Federal wage and hour laws do not require that non-exempt employees be paid for any hours that the employee does not work. In other words, hourly employees only need to be paid for hours worked. Employers should keep in mind, however, that non-exempt employees may still be entitled to pay under the company’s PTO, vacation and/or sick time policy.
Exempt Employees. Exempt employees, however, must receive their full salary for any workweek in which they perform work. The general rule for exempt employees is that deductions for variations in the quantity and quality of the employee’s work are not allowed. There are limited exceptions to this rule that allow for deductions, and such exceptions include:
Also, if an employee does not perform any work in a workweek, the employer does not have to pay the employee’s salary.
Employers should also keep in mind that a reduction of an exempt employee’s weekly pay (in circumstances in which an exception applies) may not be a viable option. Indeed, to qualify for the exemption—and not be entitled to overtime pay—the employee must be paid at least $684 per week. As a result, if an employer reduces an employee’s weekly salary and the reduction results in a weekly salary below the $684 threshold, the employer will run afoul of the salary threshold and create exposure under state and federal overtime laws.
Another recurring question among businesses relates to travel restrictions. Employers may restrict business travel because of the risks associated with COVID-19. The CDC has advised employers to restrict all nonessential travel to areas with a Level 3 Travel Health Notice, and to exercise caution regarding travel to Warning Level 2 areas. Additional helpful information may be found on the CDC’s website, Coronavirus Disease 2020 Information for Travel.
Employers cannot, however, prohibit employees from traveling for personal reasons. What employers can do is advise employees who travel that they may be subject to quarantine or potential leave upon return.
As with any employment-related decision, employers should assess each decision and situation with care and on a case-by-case basis. For instance, does the employee have an employment agreement entitling the employee to certain wages, hours per week or notice of any changes to the terms and conditions of employment? Employers and HR personnel are encouraged to seek the advice of counsel when making employment-decisions. Please contact an employment law attorney with any questions or concerns.
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